SIBANI BANERJEE Vs. TAPAN KUMAR MUKHERJEE

JUDGEMENT

(1.) While decreeing dissolution of the marriage between the parties by mutual consent under S.28 of the Special Marriage Act, 1954, in terms of the joint-petition filed by the parties, the Court made the said petition also a part of the decree. As a result, it was also decreed, as agreed between the parties in paragraph 5 of the joint-petition, that "the custody of the child", then aged 5 years and few days, "will remain with the mother till the child attains majority", that "for the purpose of education of the said child, the petitioner (here, the mother-appellant) will act as the guardian till the age of majority of the child and the respondent (i.e. the father) cannot have any objection in the matter", but that "for all other purposes, the respondent shall remain the natural guardian". It was also agreed, and accordingly decreed, that the respondent shall have the opportunity to meet the child "on every Sunday for 2 hours from 10 a.m. to 12 noon" at the residence of a named common friend and "the petitioner, i.e. the mother and/or her representative shall take the child at 10 a.m." at the said place on every Sunday "without fail".

(2.) In the petition, labelled as one under S.25 read with S.12 of the Guardians and Wards Act, 1890, whereon the impugned order assailed in this appeal has been passed, the respondent, the quondam-husband, has prayed that the appellant, the quondam wife, be directed to produce the minor child before the Court and that necessary orders be passed enabling the respondent to keep the minor in his custody. The petition is based mainly on two grounds, namely, the appellant-mother has failed and neglected to comply with that part of the Order requiring her to make the child available to the respondent-father every Sunday at the agreed place, and that such an Order is necessary for the welfare of the child, who is not being properly looked after by the appellant-mother who has married again and is now residing with her second husband at the latter's place of residence. The respondent has also admitted about his own second marriage and a further affidavit has been filed before us by the appellant, after the conclusion of arguments, alleging that the said second wife has also died as a result of poisoning and while the appellant has alleged the same to be a case of suicide, there is an oblique hint that the local people claim that the second wife was murdered by the respondent and/or his family members. In view of the order that we propose to pass for the reasons stated hereunder, we need not and do not take any notice of this alleged subsequent event sought to be introduced by the said further affidavit.

(3.) If the respondent is aggrieved because of the appellant's failure to comply with that portion of the Order forming part of the decree for divorce requiring the appellant to make the child available to the respondent every Sunday for 2 hours at the agreed place, he has his remedy under S.39-A of the Special Marriage Act, whereunder all decrees and orders made by the Court in any proceeding under Chaps. V and VI of the Act shall be enforced in like manner as the decrees and orders of the Court made in the exercise of its Original Civil Jurisdiction for the time being are enforced. No remedy, therefore, can obviously lie under S.25 of the Guardians and Wards Act, which can be invoked only for the return of a child who has left or is removed from the custody of a guardian of his person.